The Historians' Case Against Gay Discrimination

On June 26, 2003 the Supreme Court struck down all laws that prohibit sex between consenting gay adults. Below is the brief filed by historians in the case, Lawrence v. Texas.

Amici, as historians, do not propose to offer the Court legal
doctrine to justify a holding that the Texas Homosexual Conduct
Law violates the U.S. Constitution. Rather, amici believe they
can best serve the Court by elaborating on two historical propositions
important to the legal analysis: (1) no consistent historical
practice singles out same-sex behavior as sodomy subject
to proscription, and (2) the governmental policy of classifying
and discriminating against certain citizens on the basis of their
homosexual status is an unprecedented project of the twentieth century, which
is already being dismantled. The Texas law at
issue is an example of such irrational discrimination.

In colonial America, regulation of non-procreative sexual practices 
regulation that carried harsh penalties but was rarely enforced  stemmed
from Christian religious teachings and reflected the need for procreative sex
to increase the population. Colonial sexual regulation included such non-procreative
acts as masturbation, and sodomy laws applied equally to male-male, male-female,
and human-animal sexual activity. Sodomy was not the equivalent
of homosexual conduct. It was understood as a particular, discrete,
act, not as an indication of a persons sexuality or sexual orientation.

Not until the end of the nineteenth century did lawmakers
and medical writing recognize sexual inversion or what we
would today call homosexuality. The phrase homosexual
sodomy would have been literally incomprehensible to the
Framers of the Constitution, for the very concept of homosexuality
as a discrete psychological condition and source of personal
identity was not available until the late 1800s. The Court
in Bowers v. Hardwick misapprehended this history.

Proscriptive laws designed to suppress all forms of nonprocreative
and non-marital sexual conduct existed through
much of the last millennium. Widespread discrimination against
a class of people on the basis of their homosexual status
developed only in the twentieth century, however, and peaked
from the 1930s to the 1960s. Gay men and women were labeled
deviants, degenerates, and sex criminals
by the medical
profession, government officials, and the mass media. The
federal government banned the employment of homosexuals and
insisted that its private contractors ferret out and dismiss their
gay employees, many state governments prohibited gay people
from being served in bars and restaurants, Hollywood prohibited
the discussion of gay issues or the appearance of gay or lesbian
characters in its films, and many municipalities launched police
campaigns to suppress gay life. The authorities worked together
to create or reinforce the belief that gay people were an inferior
class to be shunned by other Americans. Sodomy laws that
exclusively targeted same-sex couples, such as the statute
enacted in 1973 in Texas (1973 TEX. GEN. LAWS ch. 399, §§ 1,
3), were a development of the last third of the twentieth century
and reflect this historically unprecedented concern to classify
and penalize homosexuals as a subordinate class of citizens.

Since the 1960s, however, and especially since the Bowers
decision in 1986, official and popular attitudes toward
homosexuals have changed, though vestiges of old attitudes 
such as the law at issue here  remain. Among other changes,
the medical profession no longer stigmatizes homosexuality as
a disease, prohibitions on employment of homosexuals have
given way to antidiscrimination protections, gay characters have
become common in movies and on television, 86 percent of
Americans support gay rights legislation, and family law has
come to recognize gays and lesbians as part of non-traditional
families worthy of recognition. These changes have not gone
uncontested, but a large majority of Americans have come to
oppose discrimination against lesbians and gay men.

In this case, the Court should construe the Equal Protection Clause and the
Due Process Clause with a thorough and nuanced history of the subject in mind.

ARGUMENT

I. BOWERS v. HARDWICK RESTS ON A FUNDAMENTAL MISAPPREHENSION OF THE HISTORY
OF SODOMY LAWS

In Bowers v. Hardwick, this Court concluded, by a 5-4
vote, that the Constitution does not confer a fundamental right
to engage in homosexual sodomy. The majoritys conclusion
was based, in large measure, on the ancient roots of laws
prohibiting homosexuals from engaging in acts of consensual sodomy. 478 U.S.
186, 192 (1986). The Court stated that in
1791 sodomy was forbidden by the laws of the original
thirteen States, that in 1868 all but 5 of the 37 States in the
Union had criminal sodomy laws, and that, until 1961, all 50
States outlawed sodomy. Accordingly, the
Court reasoned, the right of homosexuals to engage consensually
in the acts that have been labeled sodomy is not deeply
rooted in this Nations history and tradition. In
a concurring opinion, Chief Justice Burger relied on a similar
historical interpretation. In his view, [d]ecisions of individuals
relating to homosexual conduct have been subject to state intervention
throughout the history of Western civilization. To consider the right
to engage in homosexual sodomy a
fundamental right, Chief Justice Burger wrote, would be to cast
aside millennia of moral teaching.

Recent historical scholarship demonstrates the flaws in the
historical accounts endorsed by the Court and Chief Justice
Burger. We concur with the accounts given of the history of
sodomy laws and of their enforcement in colonial America and
the United States by the American Civil Liberties Union and the
Cato Institute in their amicus briefs. We will not endeavor to
replicate their historical accounts here, but we do wish to stress
two points about this history.

First, contrary to the Courts assumption in Bowers,
sodomy prohibitions have varied enormously in the last
millennium (and even since our own colonial era) in their definition
of the offense and in their rationalization of its prohibition.
The specification of homosexual sodomy as a criminal offense
does not carry the pedigree of the ages but is almost exclusively
an invention of the recent past.

Prohibitions against sodomy are rooted in the teachings of
Western Christianity, but those teachings have always been
strikingly inconsistent in their definition of the acts encompassed
by the term. When the term sodomy was first emphasized by medieval
Christian theologians in the eleventh century,
they applied it inconsistently to a diverse group of nonprocreative
sexual practices. In subsequent Latin theology,
canon law, and confessional practice, the term was notoriously
confused with unnatural acts, which had a very different
origin and ranged even more widely (to include, for example,
procreative sexual acts in the wrong position or with contraceptive
intent). Unnatural acts is the older category, because it
comes directly from Paul in Romans 1, but Paul does not associate
such acts with (or even mention) the story of Sodom (Genesis
19) and appears not to have considered that story to be concerned
with same-sex activity. (Cf. Ezekiel 16:49-50, where the
sin of Sodom is the arrogant and inhospitable refusal to share
wealth and leisure.)

Later Christian authors did combine Romans 1 with Genesis
19, but they could not agree on what sexual practices were
meant by either unnatural acts or sodomy. For example,
in
Peter Damian, who around 1050 championed the term sodomy
as an analogy to blasphemy, the sins of the Sodomites
include solitary masturbation. In Thomas Aquinas, about two
centuries later, unnatural acts cover every genital contact
intended to produce orgasm except penile-vaginal intercourse in
an approved position. See MARK D. JORDAN, THE INVENTION
OF SODOMY IN CHRISTIAN THEOLOGY 46, 144-145 (1997).

Many later Christian writers denied that women could commit
sodomy at all; others believed that the defining characteristic of
unnatural or sodomitic sex was that it could not result in
procreation, regardless of the genders involved. See MARK D.
JORDAN, THE SILENCE OF SODOM 62-71 (2000). In none of
these authors does the term sodomy refer systematically and
exclusively to same-sex conduct. Certainly it was not used
consistently through the centuries to condemn that conduct. The
restrictive use of the term in the Texas law at issue must itself be
regarded as a historically recent innovation.
The English Reformation Parliament of 1533 turned the
religious injunction against sodomy into the secular crime of
buggery when it made the detestable and abominable vice of
buggery committed with mankind or beast punishable by death.
The English courts interpreted this to apply to sexual intercourse
between a human and animal and anal intercourse between a
man and woman as well as anal intercourse between two men.
See William Eskridge, Jr., Law and the Construction of the
Closet: American Regulation of Same-Sex Intimacy, 1880-1946,
82 IOWA L. REV. 1007, 1012 (1997); Ed Cohen, Legislating the
Norm: From Sodomy to Gross Indecency, 88 S. ATLANTIC Q.
181, 185 (1989).

Colonial American statutes variously drew on the religious
and secular traditions and shared their imprecision in the definition
of the offense. Variously defining the crime as (the religious)
sodomy or (the secular) buggery, they generally proscribed
anal sex between men and men, men and women, and
humans and animals, but their details and their rationale varied,
and the New England colonies penalized a wider range of carnall
knowledge, including (but by no means limited to) men
lying with men. Puritan leaders in the New England colonies
were especially vigorous in their denunciation of sodomitical
sins as contrary to Gods will, but their condemnation was also
motivated by the pressing need to increase the population and to
secure the stability of the family. Thus John Winthrop mused
that the main offense of one man hanged in New Haven in 1646
for having engaged in masturbation with numerous youths  not,
in other words, for sodomy as it is usually understood today
 was his frustratinge of the Ordinance of marriage & the
hindringe the generation of mankinde. See John Murrin,
Things Fearful to Name: Bestiality in Early America, in
AMERICAN SEXUAL HISTORIES 17 (Elizabeth Reis ed., 2001);
see also Robert F. Oaks, Things Fearful to Name: Sodomy
and Buggery in Seventeenth-century New England, 12 J. SOC. HIST. 268 (1978);
JONATHAN NED KATZ, The Age of Sodomitical
Sin, 1607-1740, in GAY/LESBIAN ALMANAC 23 (1983).

Another indication that the sodomy statutes were not the
equivalent of a statute against homosexual conduct is that
with one brief exception they applied exclusively to acts
performed by men, whether with women, girls, men, boys, or
animals, and not to acts committed by two women. Only the
New Haven colony penalized women lying with women, and
this for only ten years. For the entire colonial period we have
reports of only two cases involving two women engaged in acts
with one another. As one historian notes, both cases were
treated as lewd and lascivious behavior, not as potential crimes
against nature. See Murrin at 15; KATZ, GAY/LESBIAN
ALMANAC, at 29-30.

Statutes enacted in the early decades after independence
followed the English authorities, but by the mid-nineteenth
century most statutes defined the offense as a crime against
nature rather than as a crime against God. Such statutes were
still not the equivalent of a statute proscribing homosexual
conduct. In 1868, no statute criminalized oral sex, whether
between two men, two women, or a man and woman. See
William Eskridge, Jr., Hardwick and Historiography, 1999 U.
ILL. L. REV. 631, 656.

It was only beginning in the 1970s that a handful of States,
including Texas, passed legislation specifying homosexual sodomy
while decriminalizing heterosexual sodomy. This legislation
had no historical precedent, but resulted from a uniquely
twentieth-century form of animus directed at homosexuals,
which will be detailed in the next section of this brief.

Second, throughout American history, the authorities have
rarely enforced statutes prohibiting sodomy, however defined.
Even in periods when enforcement increased, it was rare for
people to be prosecuted for consensual sexual relations conducted in private,
even when the parties were of the same sex. Indeed,
records of only about twenty prosecutions and four or five
executions have surfaced for the entire colonial period. Even in
the New England colonies, whose leaders denounced sodomy
with far greater regularity and severity than did other colonial
leaders and where the offense carried severe sanctions, it was
rarely prosecuted. The trial of Nicholas Sension, a married man
living in Westhersfield, Connecticut, in 1677, revealed that he
had been widely known for soliciting sexual contacts with the
towns men and youth for almost forty years but remained
widely liked. Likewise, a Baptist minister in New London,
Connecticut, was temporarily suspended from the pulpit in 1757
because of his repeatedly soliciting sex with men, but the
congregation voted to restore him to the ministry after he publicly
repented. They understood his sexual transgressions to be a
form of sinful behavior in which anyone could engage and from
which anyone could repent, not as a sin worthy of death or the
condition of a particular class of people. See Richard Godbeer,
The Cry of Sodom: Discourse, Intercourse, and Desire in
Colonial New England, 3.52 WM. & MARY Q. 259, 259-260,
275-278 (1995); Eskridge, 1999 U. ILL. L. REV. at 645; JOHN
DEMILIO & ESTELLE B. FREEDMAN, INTIMATE MATTERS: A
HISTORY OF SEXUALITY IN AMERICA 30 (2d ed. 1997).

The relative indifference of the public and the authorities
to the crime of sodomy continued in the first century of independence.
For instance, only twenty-two men were indicted for
sodomy in New York City in the nearly eight decades from 1796
to 1873. DEMILIO & FREEDMAN, INTIMATE MATTERS 123.
The number of sodomy prosecutions increased sharply in the last
two decades of the nineteenth century and in the twentieth
century. This was made possible by the decision of many States
to criminalize oral intercourse for the first time. But it resulted
in large measure from the pressure applied on district attorneys
by privately organized and usually religiously inspired anti-vice
societies, whose leaders feared that the growing size and complexity of cities
had loosened the constraints on sexual
conduct and increased the vulnerability of youth and the
disadvantaged. The increase in sodomy prosecutions was only
one aspect of a general escalation in the policing of sexual
activity, which also included stepped-up campaigns against
prostitution, venereal disease, and contraception use. Although
in this context a growing number of sodomy prosecutions
involved adult males who had engaged in consensual relations,
most such relations had taken place in semi-public spaces rather
than in the privacy of the home, and the great majority of cases
continued to involve coercion and/or minor boys or girls. See
DEMILIO & FREEDMAN, INTIMATE MATTERS 150-156, 202-215;
GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE,
AND THE MAKING OF THE GAY MALE WORLD 137-141
(1994); PAUL BOYER, URBAN MASSES AND MORAL ORDER IN
AMERICA, 1820-1920 (1978); Eskridge, 1999 U. ILL. L. REV. at
655-659.

Thus, the majority in Bowers misinterpreted the historical
record. Laws singling out sexual (or sodomitical) conduct
between partners of the same sex for proscription are an invention
of our time, not the legacy of millennia of moral teaching.
And in practice, regulating sodomy has never been a major
concern of the state or the public.

When reexamining a prior holding, this Court ordinarily
considers whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant
application or justification. Planned Parenthood v. Casey, 505
U.S. 833, 855 (1992). See also Church of Lukumi Babalu Aye v.
City of Hialeah, 508 U.S. 520, 574-575 (1993) (Souter, J.,
concurring in part) (arguing that recent historical scholarship
correcting incomplete historical assessments by the Court justifies
reexamination of constitutional precedent). Because, in this
case, historical scholarship demonstrates that the use of sodomy
laws to regulate exclusively same-sex behavior and to restrict homosexuals is
a recent invention, this Court should reconsider
its earlier opinion in Bowers, which rested on an inaccurate
historical assessment. And, at the very least, it should recognize
that Texass singling out of same-sex sodomy for prohibition
lacks a significant historical pedigree.

Furthermore, in its analysis of the Equal Protection Clause
issue in this case, the Court should recognize what the foregoing
history shows: sodomy laws have not only varied in content over
time, but have also depended on the kinds of status-based
distinctions and shifting justifications that are typical of
irrational discrimination. Neither millennia of moral teachings
nor the American experience teach any consistent message about
which sexual practices between consenting adults should be
condemned and why. Rather, the unprecedented enactment in
recent decades of sodomy laws that exclusively penalize
homosexual conduct is one indication of the growth of a
uniquely twentieth-century form of discrimination.

II. DISCRIMINATION ON THE BASIS OF HOMOSEXUAL STATUS WAS AN UNPRECEDENTED
DEVELOPMENT OF THE TWENTIETH CENTURY

Over the generations, sodomy legislation proscribed a diverse
and inconsistent set of sexual acts engaged in by various
combinations of partners. Above all, it regulated conduct in
which anyone (or, at certain times and in certain places, any
male person) could engage. Only in the late nineteenth century
did the idea of the homosexual as a distinct category of person
emerge, and only in the twentieth century did the state begin to
classify and penalize citizens on the basis of their identity or
status as homosexuals. The States began to enact discriminatory
measures in the 1920s and 1930s, but such measures and other
forms of anti-gay harassment reached a peak in the twenty years
following the Second World War, when government agencies
systematically discriminated against homosexuals.

For a detailed philological explication, see DAVID HALPERIN, ONE
HUNDRED YEARS OF HOMOSEXUALITY 15 & n.155 (1990).
The unprecedented decision of Texas and several other
states, primarily in the 1970s, to enact sodomy laws singling out
homosexual sodomy for penalty, is best understood historically
in the context of these discriminatory measures. The new
sodomy laws essentially recast the historic purpose of such laws,
which had been to regulate conduct generally, by adding them
to the array of discriminatory measures directed specifically
against homosexuals. Such discriminatory measures against
homosexuals, although popularly imagined to be longstanding,
are in fact not ancient but a unique and relatively short-lived
product of the twentieth century.

It was only in the late nineteenth century that the very concept
of the homosexual as a distinct category of person developed.
The word homosexual appeared for the first time in a
German pamphlet in 1868, and was introduced to the American
lexicon only in 1892. JONATHAN NED KATZ, THE INVENTION OF
HETEROSEXUALITY 10 (1995). As Michel Foucault has
famously described this evolution, the sodomite had been a
temporary aberration; the homosexual was now a species. 1
MICHEL FOUCAULT, THE HISTORY OF SEXUALITY 43 (Robert
Hurley trans. 1978).

The discriminatory measures we will describe responded to
the growing visibility of gay and lesbian subcultures in
American cities in the late nineteenth and early twentieth
centuries. It should be noted, though, that many Americans
responded to gay life with fascination and sympathy. Many
people regarded the increasing visibility of gay life as simply
one more sign of the growing complexity and freedom from
tradition of a burgeoning metropolitan culture. Thousands of
New Yorkers attended the drag balls organized by gay men in
Harlem in the 1920s and 30s, for instance, and two of the most successful nightclubs
in Times Square in 1931 featured openly
gay entertainers. See CHAUNCEY, GAY NEW YORK 258, 320.

Others regarded the growing visibility of lesbian and gay
life with dread. Hostility to homosexuals was sometimes
motivated by an underlying uneasiness about the dramatic
changes underway in gender roles at the turn of the last century.
Conservative physicians initially argued that the homosexual (or
sexual invert) was characterized as much by his or her violation
of conventional gender roles as by specifically sexual interests.
At a time when many doctors argued that women should
be barred from most jobs because employment would interfere
with their ability to bear children, numerous doctors identified
womens challenges to the limits placed on their sex as evidence
of a medical disorder. Thus doctors explained that the female
possessed of masculine ideas of independence was a degenerate
and that a decided taste and tolerance for cigars, * * *
[the] dislike and incapacity for needlework * * * and some
capacity for athletics were all signs of female sexual
inversion. George Chauncey, From Sexual Inversion to
Homosexuality: Medicine and the Changing Conceptualization
of Female Deviance, SALMAGUNDI, Fall 1982/Winter 1983, at
114, 120-121 (quoting HAVELOCK ELLIS, SEXUAL INVERSION
(3d rev. ed. 1915); see ibid. (citing W.L. Howard, Effeminate
Men and Masculine Women, N.Y. MEDICAL J. 71 (1900)). Similarly,
another doctor thought it significant that a male pervert
never smoked and never married; [and] was entirely averse to
outdoor games. (quoting W.C. Rivers, A New Male
Homosexual Trait (?), ALIENIST & NEUROLOGIST 41 (1920)).
See also Charles Rosenberg & Carroll Smith-Rosenberg, The
Female Animal: Medical and Biological Views of Women, 60 J.
AM. HISTORY 332 (1973).

Such views lost their credibility once public opinion had
come to accept significant changes in womens roles in the
workplace and political sphere, but doctors continued for several more decades
to identify homosexuality per se as a disease,
mental defect, disorder, or degeneration.
Until the American
Psychiatric Association removed homosexuality from its
list of disorders in 1973, such hostile medical pronouncements
provided a powerful source of legitimation to anti-homosexual
sentiment, just as medical science had previously legitimized
widely held (and subsequently discarded) beliefs about male
superiority and white racial superiority. See Chauncey, SALMAGUNDI
at 129, 133, 137, 141; Siobhan Somerville, Scientific
Racism and the Invention of the Homosexual Body, in QUEER
STUDIES 241 (Beemyn & Eliason eds., 1996); DEMILIO &
FREEDMAN, INTIMATE MATTERS 122, 226; JENNIFER TERRY, AN
AMERICAN OBSESSION: SCIENCE, MEDICINE, AND HOMOSEXUALITY
IN MODERN SOCIETY (1999).

Anti-vice societies organized in the late nineteenth century
also opposed the growing visibility of homosexuality, which
they regarded as an egregious sign of the loosening of social
controls on sexual expression in the cities. They encouraged the
police to step up harassment of gay life as simply one more part
of their campaigns to shut down dance halls and movie theaters,
prohibit the consumption of alcohol and the use of contraceptives,
dissuade restaurants from serving an interracial mix of
customers, and otherwise impose their vision of the proper
social order and sexual morality. As a result of this pressure, the
police began using misdemeanor charges, such as disorderly
conduct, vagrancy, lewdness, loitering, and so forth to harass
homosexuals. These state misdemeanor or municipal offense
laws, which carried fewer procedural protections, allowed further
harassment of individuals engaged in same-sex intimacy.
See DEMILIO & FREEDMAN, INTIMATE MATTERS 150-156, 202-
215; CHAUNCEY, GAY NEW YORK 137-141, 183-186, 197-198,
249-250; BOYER, URBAN MASSES 191-219.

In some cases, state officials tailored these laws to strengthen
the legal regulation of homosexuals. For example, in 1923 the New York State
legislature specified for the first time one
mans frequent[ing] or loiter[ing] about any public place soliciting
men for the purpose of committing a crime against nature
or other lewdness as a form of disorderly conduct. CHAUNCEY,
GAY NEW YORK 172. Many more men were arrested and
prosecuted under this misdemeanor charge than for sodomy.
Between 1923 and 1967, when Mayor John Lindsay ordered the
police to stop using entrapment to secure arrests of gay men,
more than 50,000 men had been arrested on this charge in New
York City alone. George Chauncey, A Gay World, Vibrant and
Forgotten, N.Y. TIMES, June 26, 1994, at E17.

Even this stepped-up policing of gay life fails to anticipate
the scale of the discrimination against homosexuals put in place
in the twentieth century, especially between the 1930s and
1960s. In the early years of the Great Depression, restrictions on
gay life intensified. New regulations curtailed gay peoples freedom
of association. In New York State, for instance, the State
Liquor Authority established after the Repeal of Prohibition issued
regulations prohibiting bars, restaurants, cabarets, and other
establishments with liquor licenses from employing or serving
homosexuals or allowing homosexuals to congregate on their
premises. CHAUNCEY, GAY NEW YORK 173, 337. The Authoritys
rationale was that the mere presence of homosexuals made
an establishment disorderly, and when the courts rejected that
argument the Authority began using evidence of unconventional
gender behavior or homosexual solicitation gathered by plainclothes
investigators to provide proof of a bars disorderly character.
Hundreds of bars were closed in the next
thirty years in New York City alone.

Similar regulations were introduced around the country in
subsequent years. In California in the 1950s, notes one
historian, the Alcoholic Beverage Control Board collapsed the
difference between homosexual status (a state of being) and
conduct (behavior) and suggested that any behavior that signified homosexual
status could be construed as an illegal act.
Simple acts such as random touching, mannish attire (in the case
of lesbians), limp wrists, high pitched voices, and/or tight
clothing (in the case of gay men) became evidence of a bars
dubious character and grounds for closing it. NAN ALAMILLA
BOYD, WIDE OPEN TOWN: A HISTORY OF QUEER SAN
FRANCISCO (forthcoming 2003) (manuscript at 159). For similar
policies elsewhere, see, e.g., ELIZABETH LAPOVSKY KENNEDY
& MADELINE DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD:
THE HISTORY OF A LESBIAN COMMUNITY 145-146 (1993).

Other regulations curtailed gay peoples freedom of speech
and the freedom of all Americans to discuss gay issues. The
Hollywood studios, under pressure from a censorship movement
led by religious (primarily Catholic) leaders, established a
production code that from 1934 on prohibited the inclusion of
gay or lesbian characters, discussion of homosexual issues, or
even the inference of sex perversion in Hollywood films.
This censorship code remained in effect for some thirty years
and effectively prohibited the discussion of homosexuality in the
most important medium of the mid-twentieth century. See
CHAUNCEY, GAY NEW YORK 353 & n.57. See generally
GREGORY BLACK, THE CATHOLIC CRUSADE AGAINST THE
MOVIES, 1940-1975 (1997); GREGORY D. BLACK, HOLLYWOOD
CENSORED: MORALITY CODES, CATHOLICS, AND THE MOVIES
(1994); VITO RUSSO, THE CELLULOID CLOSET: HOMOSEXUALITY
IN THE MOVIES (1991).

The persecution of gay men and lesbians dramatically increased
at every level of government after the Second World
War. In 1950, following Senator Joseph McCarthys denunciation
of the employment of gay persons in the State Department,
the Senate conducted a special investigation into the employment
of homosexuals and other sex perverts in government. S.
REP. NO. 241 (1950). The Senate Committee recommended
excluding gay men and lesbians from all government service. As historian David
Johnson noted, however, the Senate Committee
could only uncover one example of a homosexual who was
blackmailed into betraying his country, and for that, investigators had
to reach back to World War I and beyond Americas shores, to a
Captain Raedl, chief of the Australian Counterintelligence Service in
1912. David Johnson, Homosexual Citizens: Washingtons Gay
Community Confronts the Civil Service, WASH. HISTORY, Fall/Winter
1994-95, at 45, 48....

The Senate investigation and report were only one part of
a massive anti-homosexual campaign launched by the federal
government after the war. The Senate Committee reported that
[a] spot check of the records of the Civil Service Commission
indicates that between January 1, 1947, and August 1, 1950,
approximately 1,700 applicants for Federal positions were
denied employment because they had a record of homosexuality
or other sex perversion. S. REP. 241 at 9. In 1953, President
Eisenhower issued an executive order requiring the discharge of
homosexual employees from federal employment, civilian or
military. JOHN DEMILIO, SEXUAL POLITICS, SEXUAL COMMUNITIES:
THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES, 1940-1970, at 44 (1983).
Thousands of men
and women were discharged or forced to resign from civilian
and military positions because they were suspected of being gay
or lesbian. Ibid.; ROBERT D. DEAN, IMPERIAL BROTHERHOOD:
GENDER AND THE MAKING OF COLD WAR FOREIGN POLICY
(2001).

In addition, President Eisenhowers executive order required
defense contractors and other private corporations with
federal contracts to ferret out and discharge their homosexual
employees. David Johnson, Homosexual Citizens: Washingtons
Gay Community Confronts the Civil Service, WASH.
HISTORY, Fall/Winter 1994-95, at 45, 53. Other private industries
adopted the policies of the federal government * * * even
though they had no direct federal contracts. Ibid. Furthermore,
the FBI initiated a widespread system of surveillance to enforce
the executive order. As one historian has noted, The FBI
sought out friendly vice squad officers who supplied arrest
records on morals charges, regardless of whether convictions
had ensued. Regional FBI officers gathered data on gay bars,
compiled lists of other places frequented by homosexuals, and
clipped press articles that provided information about the gay
world. * * * Federal investigators engaged in more than factfinding;
they also exhibited considerable zeal in using
information they collected. DEMILIO, SEXUAL POLITICS,
SEXUAL COMMUNITIES 46-47.

The official harassment of homosexuals received further
legitimation from a series of press and police campaigns in the
1930s, 1940s, and 1950s that fomented demonic stereotypes of
homosexuals as child molesters. Despite the lack of evidence
that the incidence of rape, child murder, or minor sex offenses
had increased, these press campaigns led to demands that the
state crack down on sex crimes. Estelle Freedman, Uncontrolled
Desires: The Response to the Sexual Psychopath, 1920-
1960, 74 J. AM. HISTORY 83, 92 (1987). See also George Chauncey, The Postwar
Sex Crime Panic, in TRUE STORIES
FROM THE AMERICAN PAST 172 (William Graebner ed., 1993).
The majority of cases of child sex murders reported by the
press involved men attacking girls. But * * * numerous articles
warned that in breaking with social convention to the extent
necessary to engage in homosexual behavior, a man had
demonstrated the refusal to adjust to social norms that was the
hallmark of the psychopath * * *. CHAUNCEY, GAY NEW
YORK 359. As a result of such press campaigns, the longstanding
public image of the queer as an effeminate fairy whom
one might ridicule but had no reason to fear was supplemented
by the more ominous image of the queer as a psychopathic child
molester capable of committing the most unspeakable crimes
against children.

The new demonic stereotypes of homosexuals were used to
justify draconian legislation. See Chauncey, Sex Crime Panic
at 169, 171. In response to the public hysteria incited by such
press campaigns, more than half the state legislatures enacted
laws allowing the police to force persons who were convicted of
certain sexual offenses, including sodomy  or, in some States,
merely suspected of being sexual deviants  to undergo psychiatric
examinations. The examinations could result in indeterminate
civil confinements for individuals deemed in need of a
cure for their homosexual pathology. See Freedman, 74
J.
AM. HISTORY at 95-98; Chauncey, Sex Crime Panic at 166-167,
177; MARC STEIN, CITY OF SISTERLY AND BROTHERLY LOVES:
LESBIAN AND GAY PHILADELPHIA, 1945-1972, at 124-125
(2000).

The government campaign against lesbians and gay men
was waged at the local level as well. The labeling of
homosexuals as moral perverts and national security risks, along
with the repressive policies of the federal government,
encouraged local police forces across the country to harass them
with impunity. DEMILIO & FREEDMAN, INTIMATE MATTERS, 293. In
the decade following World War II, the police departments
of numerous cities stepped up their raids on bars and
private parties attended by gay and lesbian persons, and made
thousands of arrests for disorderly conduct. Arrests were
substantial in many cities. In the District of Columbia they
topped 1,000 per year during the early 1950s; in Philadelphia,
misdemeanor charges against lesbians and homosexuals
averaged 100 per month. * * * New York, New Orleans,
Dallas, San Francisco and Baltimore were among the cities that
witnessed sudden upsurges in police action against homosexuals
and lesbians in the 1950s. John DEmilio, The Homosexual
Menace: The Politics of Sexuality in Cold War America, in
PASSION AND POWER: SEXUALITY IN HISTORY 231 (Peiss &
Simmons eds., 1989).

In some parts of the country, hostility to gay men
approached hysteria. In 1955, for example, there was an
extensive investigation of gay men in Boise, Idaho. Fourteen
hundred people were interrogated and coerced into identifying
the names of other gay residents. DEMILIO, SEXUAL POLITICS,
SEXUAL COMMUNITIES 51; JOHN GERASSI, THE BOYS OF BOISE:
FUROR, VICE, AND FOLLY IN AN AMERICAN CITY (1966).
Countless state employees, teachers, hospital workers, and
others lost their jobs as a result of official policy. Beginning in
1958, for instance, the Florida Legislative Investigation
Committee, which had been established by the legislature in
1956 to investigate and discredit civil rights activists, turned its
attention to homosexuals working in the States universities and
public schools. Its initial investigation of the University of
Florida resulted in the dismissal of fourteen faculty and staff
members, and in the next five years it interrogated some 320
suspected gay men and lesbians. It pressured countless others
into relinquishing their teaching positions, and had many
students quietly removed from state universities. Stacy
Braukman, Nothing Else Matters But Sex: Cold War Narratives of Deviance
and the Search for Lesbian Teachers in
Florida, 1959-1963, 27 FEMINIST STUDIES 553, 555 (2001); see
also id. at 553-557, 573 & n.3. Its 1959 report to the legislature
called the extent of homosexual activity in the States school
system absolutely appalling. See also James A.
Schnur, Closet Crusaders: The Johns Committee and Homophobia,
1956-1965, in CARRYIN ON IN THE LESBIAN AND GAY
SOUTH 132-163 (John Howard ed., 1997).

Lesbians, gay men, and their supporters challenged police
harassment and state discrimination throughout this period, but
with little success before the 1960s and 1970s. Through much
of the twentieth century, gay men and lesbians suffered under
the weight of medical theories that treated their desires as a disorder,
penal laws that condemned their sexual behavior as a
crime, and federal policies and state regulations that discriminated
against them on the basis of their homosexual status. These
state practices and ideological messages worked together to
create or reinforce the belief that gay persons were an inferior
class to be shunned by other Americans. Such forms of discrimination,
harassment, and stigmatization were so pervasive and
well established by the 1960s that it was widely imagined that
they were the inevitable residue of an age-old, unchanging
social antipathy toward homosexuality. CHAUNCEY, GAY NEW
YORK 355. But recent historical scholarship tells a different
story. Discrimination on the basis of homosexual status was a
powerful but unprecedented development of the twentieth
century. Public conceptions and attitudes had changed, and they
would change again.

III. TOLERANCE TOWARD HOMOSEXUALS HAS INCREASED, RESULTING IN ACCEPTANCE
BY MANY, BUT NOT ALL, MAINSTREAM INSTITUTIONS

Since the 1960s, official and popular attitudes toward
homosexuals have changed significantly, with a dramatic attitudinal shift since
Bowers was decided in 1986. Homosexuality
remains a contentious moral and political issue and we still live
with the legacy of the many discriminatory measures put in
place between the 1930s and 1960s, but a significant number of
those measures have been repealed in recent years as large segments
of the American public have become more understanding
and accepting of lesbians and gay men.

The widespread consensus in the first half of the twentieth
century that homosexuality was pathological and dangerous has
given way, with growing numbers of expert and ordinary
Americans regarding it as a normal and benign variation of
human sexuality. Major institutions that once helped legitimize
anti-gay hysteria have changed their positions. Medical writers
and mental health professionals whose stigmatization of homosexuality
as a disease or disorder had been used to justify discrimination
for decades  as discussed in Part II above  were
among the first to change their views. In 1973, the American
Psychiatric Association voted to remove homosexuality from its
list of mental disorders. Gary B. Melton, Public Policy and
Private Prejudice, 44 AM. PSYCHOLOGIST 933, app. A, at 936
(1989) (citing Resolution of the American Psychiatric
Association, Dec. 15, 1973). The American Psychological
Association and the American Medical Association soon
followed suit. See Resolution of the Council of Representatives
of the American Psychological Association, 30 AM.
PSYCHOLOGIST 633 (1975).

Religious attitudes toward homosexuals and homosexuality
also began to change. The place of lesbians and gay men in
religious life is still vigorously debated, but since the 1970s
many mainline Protestant denominations have issued official
statements condemning legal discrimination against homosexuals
and affirming that homosexuals ought to enjoy equal
protection under criminal and civil law. Several of these groups
descended from the historically influential denominations whose Statements in
support of equal legal protection for homosexual persons
were also adopted by the Central Conference of American
Rabbis and the Union of American Hebrew Congregations as early as
1977. ...

The federal government, which once prohibited the
employment of homosexuals, now prohibits its agencies from
discriminating against them in employment. The U.S. Civil
Service Commission lifted its ban on the employment of gay
men and lesbians in 1975. DEMILIO & FREEDMAN, INTIMATE MATTERS 324.
President Clinton signed executive orders
banning discrimination in the federal workplace on the basis of
sexual orientation, Exec. Order No. 13,087, 63 Fed. Reg. 30,097
(May 28, 1998), and barring the use of sexual orientation as a
criterion for determining security clearance, Exec. Order No.
12,968, 60 Fed. Reg. 40,245 (Aug. 2, 1995). Hundreds of companies
have adopted similar measures. A survey of 319 of
Americas largest companies found that approximately 92 percent
of the firms surveyed prohibit workplace discrimination
against gays and lesbians. Kirstin Downey Grimsley, Rights
Group Rates Gay-Friendly Firms, WASH. POST, Aug. 14, 2002.

A substantial number of States and cities have prohibited
discrimination based on sexual orientation. Thirteen States,
eleven of them since 1990, and the District of Columbia have
passed laws banning discrimination on the basis of sexual orientation.
5 National Gay & Lesbian Taskforce, GLBT Civil Rights
Laws in the U.S., available at http://www.ngltf.org. More than
140 cities have similarly acted to prohibit discrimination based
on sexual orientation. Wayne van der Meide, Legislating
Equality: A Review of Laws Affecting Gay, Lesbian, Bisexual,
and Transgendered People in the United States (National Gay &
Lesbian Taskforce 2000).

With the lifting of censorship and the growing interest in
gay people and issues, there has been a dramatic increase in the
coverage of gay issues in the media and in the number of gay
characters in the movies and on television. In Hollywood, Tom Hanks received
an Oscar for portraying a gay man with AIDS
and then thanked his gay high school drama teacher before a
worldwide viewing audience. DEMILIO & FREEDMAN, INTIMATE
MATTERS 368. One of the most popular television series
of the last several years, Will & Grace (NBC), features two gay
characters in leading roles, and 28 other series in the 2001-2002
season featured major gay or lesbian characters. See Gay &
Lesbian Alliance Against Defamation, Where We Are on TV,
available at http://www.glaad.org/eye/ontv/index.php. This has
dramatically changed the dominant representation of homosexuals.
Gay people usually appeared in the media in the 1950s
only as shadowy and dangerous figures, as discussed in Part II
above, but they now appear as a diverse and familiar group
whose all-too-human struggles and pleasures draw the interest
of large viewing audiences.

It is not only in the media that heterosexuals see homosexuals.
The growing openness of lesbians and gay men about their
sexual orientation since the 1970s has had a tremendous impact
on their relatives, friends, neighbors, and co-workers. Growing
numbers of heterosexuals realize that some of the people they
most love and respect are gay. Anywhere from half to three
quarters of Americans know someone who is homosexual
* * *. Frank Newport, Gallup Poll News Service, Homosexuality,
Sept. 2002, available at http://www.gallup.com/poll.As a result, acceptance
of gays has increased. See Joan
Biskupic, For Gays, Tolerance Translates To Rights, WASH.
POST, Nov. 5, 1999 (The prevailing national sentiment * * * is
one of tolerance toward sexual variation.).

Even those who are hostile to or made uneasy by
homosexuality are against discrimination and intolerance. A
2002 Gallup Poll found that, while 44 percent of the people said
homosexuality was unacceptable, 86 percent of those surveyed
said homosexuals should have equal rights in terms of job
opportunities. Newport, Gallup Poll, supra. Only 56 percent of
Americans supported gay rights legislation in 1977. The figure
jumped to 83 percent in 1989, and increased to 86 percent in
2002. Ibid.

A growing number of businesses, universities, and state and
municipal governments have recognized that many gay people
are members of families and share the same family responsibilities
other Americans do. More than 5,389 companies now offer
health insurance and other benefits to the same-sex domestic
partners of their employees, as do 151 state or local governments.
Only four companies and three governmental units did
so in 1986. Human Rights Campaign, WorkNet Database,
available at http://www.hrc.org/worknet/dp/index.asp. More
than two-thirds of the Nations largest companies offer health
benefits to same-sex partners, Whats News, WALL ST. J., Aug.
14, 2002, including Coca-Cola and the big three automakers,
Business Brief, WALL ST. J., June 23, 2000.

President Bush recently signed legislation  named after one of the gay
heroes
of September 11, 2001  allowing death benefits to be paid to
the domestic partners of firefighters and police officers who die
in the line of duty. Mychal Judge Police & Fire Chaplains
Public Safety Officers Benefit Act of 2002, Pub. L. No. 107-
196, 116 Stat. 719 (June 24, 2002).

Gay men and lesbians who parent together or as individuals
have also become more numerous and visible. This has led to
greater familiarity with and acceptance of gay parents. The experience
of family courts that consider the best interests of individual
children is revealing. Over the several decades in which
courts have considered the rights of gay, lesbian, and bisexual
parents, experience has led the vast majority of States to adopt
custody standards that are neutral as to sexual orientation.
Stephanie R. Reiss, Meghan Wharton & Joanne Romero, Child
Custody and Visitation, 1 GEO. J. GENDER & LAW 383, 392-397
(2000); see, e.g., Jacoby v. Jacoby, 763 So. 2d 410 (Fla. Dist.
Ct. App. 2000). Acceptance has increased in part because research studies have
led numerous influential medical and mental
health groups, including the American Academy of Pediatrics,
to endorse nondiscriminatory standards. American Academy of
Pediatrics, Technical Report: Coparent or Second-Parent
Adoption by Same-Sex Parents, 109 PEDIATRICS 341 (2002).

Floridas ban on adoption by gay individuals, FLA. STAT. ANN.
§ 63.042 (West 2001), is the only one of its kind. Courts in
almost half the States have allowed second-parent adoptions by
gay and lesbian partners, and this mechanism is also part of the
Uniform Adoption Act. Jane S. Schacter, Constructing Families
in a Democracy: Courts, Legislatures and Second-Parent
Adoption, 75 CHI.-KENT L. REV. 933, 934 (2000); see, e.g., In
re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002). In
gay families in which there was no second-parent adoption but
there was a clear agreement jointly to parent that the parties
fulfilled, many courts have allowed the second parent to secure
custody or visitation rights, see, e.g., Gestl v. Frederick, 133
Md. App. 216, 754 A.2d 1087 (2000), and held them to
corresponding child support obligations. L.S.K. v. H.A.N., 2002
WL 31819231 (Pa. Super. Dec. 17, 2002).

In short, there are many indications that in the last generation,
and especially in the last decade, the acceptance of lesbians
and gay men as full and equal members of our society has
become commonplace. The growing openness of gay people
and the lessening of discrimination against them have not gone
unchallenged, however. Their growing visibility and acceptance
have prompted a sharp reaction by some groups, just as the gains
of the black civil rights movement did in the 1950s and 1960s.

The defenders of the popular prejudice of any particular
age, lacking any recognizably rational basis for the distinctions
they draw, often resort to claiming they are endorsed by millennia of moral
teaching. They also distort the meaning of equal
protection of the laws. When the opponents of a proposed open
housing law in Detroit organized a successful voter initiative
against it in 1964, for instance, they argued that such
anti-discrimination measures conferred special privileges on
African-Americans. THOMAS SUGRUE, THE ORIGINS OF THE
URBAN CRISIS: RACE AND INEQUALITY IN POSTWAR DETROIT
227 (1997). Opponents of laws prohibiting discrimination on
the basis of sexual orientation have advanced a similar claim.
JOHN GALLAGHER & CHRIS BULL, PERFECT ENEMIES: THE
BATTLE BETWEEN THE RELIGIOUS RIGHT AND THE GAY
MOVEMENT 111-114 (1996).

Since the 1970s, national organizations advocating traditional
family values have paid increasing attention to the issue
of gay rights and many local groups have organized to fight gay
rights ordinances. In 1977, singer Anita Bryant declared that her
Baptist faith moved her to lead a successful campaign to rescind
a gay rights ordinance that had been passed in Dade County, Florida. See, e.g.,
DUDLEY CLENDINEN & ADAM NAGOURNEY,
OUT FOR GOOD: THE STRUGGLE TO BUILD A GAY RIGHTS
MOVEMENT IN AMERICA 292 (1999). In the next twenty years,
scores of referenda were initiated to overturn such laws, almost
four-fifths of them successful. GALLAGHER & BULL, PERFECT
ENEMIES 16-20, 39-62, 97-124, 173-187; WILLIAM N.
ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE
CLOSET 131-132 (1999). One well-known example is
Colorados Amendment 2. In response to local ordinances banning
discrimination on the basis of sexual orientation, the voters
of Colorado adopted a referendum amending the state constitution
to prohibit legislative, executive, or judicial action protecting
gay men and lesbians. Romer v. Evans, 517 U.S. 620,
623-624 (1996). This Court determined that the Colorado
amendment violated the Equal Protection Clause.

Additionally, laws permitting overt intolerance and discrimination
against homosexuals, including same-sex sodomy
laws in a handful of States, remain in force, with severe
consequences for peoples lives and livelihoods. For example,
a review of twenty surveys conducted across America between
1980 and 1991 showed that between 16 and 44 percent of gay
men and lesbians had experienced discrimination in
employment. Employment Discrimination on the Basis of
Sexual Orientation: Hearings on S. 2238 Before the Senate
Comm. on Labor and Human Resources, 103d Cong., 2d Sess.
70 (1994) (statement of Anthony P. Carnevale, Chair, National
Commission for Employment Policy). Cheryl Summervilles
separation notice from Cracker Barrel read: This employee is
being terminated due to violation of company policy. This
employee is gay. Labeling gay people criminals  as
same-sex sodomy laws do  also leads to the imposition of many
legal disabilities because the law permits differential treatment
of criminals. Christopher R. Leslie, Creating Criminals: The
Injuries Inflicted by Unenforced Sodomy Laws, 35 HARV.
C.R.-C.L. L. REV. 103, 115 (2000). Some  but by no means all  of
the most important disabilities arise in parents efforts to
maintain relationships with their children. See, e.g., Bottoms v.
Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (although a lesbian
mother is not per se an unfit parent[,] * * * [c]onduct inherent
in lesbianism is punishable as a Class 6 felony in the
Commonwealth * * *; thus, that conduct is another important
consideration in determining custody).

We ask the Court to consider the findings of recent
historical scholarship on the history of sexual regulation, sodomy
prohibitions, and anti-gay discrimination as it considers this
case. In our judgment as historians, the lessons of this history
are clear. The history of antigay discrimination is short, not
millennial. In early American history, sodomy was indeed
condemned, but the concept of the homosexual and the notion
of singling out homosexual sodomy for condemnation were
foreign. Through most of our Nations history, sodomy laws
prohibited some forms of same-sex conduct only as one aspect
of a more general (and historically variable) prohibition.
It was only in the twentieth century that the government
began to classify and discriminate against certain of its citizens
on the basis of their homosexual status. An array of discriminatory
laws and regulations targeting lesbians and gay men were
put in place in a relatively short period of time. In recent years,
a decisive majority of Americans have recognized such measures
for what they are  discrimination that offends the principles
of our Nation  yet a number of them remain in place. The
1973 Texas Homosexual Conduct Law at issue is an example of
such discriminatory laws. They hold no legitimate place in our
Nations traditions.

More Comments:

Adam Leslie Barlow -
12/1/2009

Read Leviticus 18:22-23

this text clearly condemns homosexuality and was written over 2000 years ago.

Adam Leslie Barlow -
12/1/2009

Read leviticus 18:22-23 You shall not lie with a male as with a woman. This is an abomination. 23 Nor shall you mate with any animal, to defile yourself with it. Nor shall any woman stand before an animal to mate with it. It is perversion.

This gives further evidence that the moral's of this nation are clearly not under god but under it's own interpretation of what is right.

Jeff McMahon -
11/11/2003

Eric sweetie,

You left your boxers at my apartment.

Thomas Betham -
10/27/2003

The Kinsey standard accepted that 10% of the population has a gay orientation.

The numbers are not important. They are all the product of heterosexual couples.

J. Carr -
10/21/2003

Just a quick question, what percentage of the U.S. population is homosexual? What prompts me to ask is that I have heard that upward of 30 percent of the population is either actively bi-sexual or exclusively homosexual. I can't seem to find anything really definitive on this, just a lot of propaganda from both the Left and the Right. Thanks

Thomas Betham -
9/16/2003

Yes I agree.

Most young people don't care. The old recationary types like Prof. R, are now a dying breed. Thankfully.

Daneesha Harvey -
9/16/2003

I think that society is changing with the times and will eventually get used to homosexuality. Just like racism and everything else it has changed with. Besides to many people are gay to keep this old tradition in act.

Thomas Betham -
9/9/2003

I think people understand religion as a framework in just the same way as yoga and meditation can be a framework. As a gay man I'm turned off by the major religions with the exception of Buddhism but I don't have a problem with there being over 300 religions. What I call the arrogance of monotheism is quite recent in the great scheme of things. Homosexuals have been tolerated and valued throughout human existance. Dianic Wicca is practiced solely by women and attracts large numbers of Lesbians to its gatherings. Many Gay men are to be found practicing the Faery tradition of Wicca. Although you will find plenty of mixed sex groups practicing the Faery tradition, as a general rule all would welcome Queers within their membership. Neo-paganism is finding a much greater following today. The clearest textual testimony in ancient times comes from nineteenth century BC Mesopotamia. Androgynous priests were associated with the worship of the goddess Istar. The pagan religions of ancient Canaan appear to maintain a similar view of spirituality and sexuality. The goddess Anat preserves many of the characteristics of Istar. Like the Asyrian goddess Cybele, Anat is headstrong and submits to no one. She is both young and nubile but also a bearded soldier, leading many to conclude that she was either androgynous or bi-sexual. Homosexual practice can be traced back through the Greco-Roman pantheon and also in Celtic Druidism and Shamanism. Similar pagan practises can be traced to ancient China where Taoism was the tradition together with Buddhism before the influence of Confucianism and Zen Buddhism. Shamanism can be traced through Central Asia to the North American Indians. In particular the aboriginal people of North America were noted for their innate spirituality and the way they connected with the physical elements and the plants and animals around them and this leads back into pre-history.

The relationship between predator and prey has interested humans since the beginnings of our existence. Predator animals and prey animals keep nature in balance. The earliest cave paintings found in various parts of the world depict both predator and prey animals. Within a very short time of these most primitive drawings, another form began to appear on the cave walls: a human figure either dressed in animal skins and wearing antlers or a human head superimposed upon an animal's body. Since our most ancient Ancestors left no captions beneath their artwork, researchers can only speculate what these animal-human forms might mean. But both archaeologists and anthropologists are fairly certain that these figures represent perhaps the earliest emergence of the spiritual expression known as shamanism where all religions are rooted. Of course the rise of patriarchal monotheism as a form of political control ensured that paganism was stamped out by the sword and the inquisition. It's good to see it on the rise again. As church congregations dwindle and many Muslims don't bother to attend mosques lots of people are finding other spiritual frameworks for living their lives.

J.F. Saddler -
8/19/2003

Read the rest of this or any other colonial code--just because one section mentions specifically same-sex sexual conduct, it doesn't mean that it EXCLUDES other types. In fact, John Murrin once stated that the severest punishment (and it wasn't death) ever imposed for a sexual crime in the English colonies was for a man's child-rape of a girl in 17th-century Quaker New Jersey. It seems to me that they actually had their priorities in order.

If you are going to charge pro-Lawrence defenders with being selective, you should admit your own political agenda.

Respectfully,
J.F. Saddler

Eric Rasmusen -
7/21/2003

The brief is arguing that sodomy laws are (a) Christian, and (b) a product of the 20th century. Doesn't that sound a bit implausible? How is it that the Christians managed to only get legislation passed when bible-believing Christianity was in sharp decline, and only after the Victorian era was well ended?

I note also the lack of evidence that homosexuality was common and tolerated pre-1900 in America. This reminds me a bit of the old Boswell book on homosexuality in the Middle Ages, where the argument is that homosexuality was approved before the scholastics started condemning it around 1200, and the evidence is that we have documents condemning it starting in 1200, but we don't from the Dark Ages-- when, however, we don't have many documents of any kind.

John Kipper -
7/11/2003

Mr Cramer, you really have to stop this pernicious nitpicking of agenda driven historians. How dare you attempt to discredit prominent historians based solely on the evidence of primary sources? First _Arming America_ and now sodomy! Have you no shame,sir? Keep up the good work.

Clayton E. Cramer -
7/11/2003

No, five justices (including Kennedy) signed Kennedy's decision, not four.

Clayton E. Cramer -
7/11/2003

"The trial of Nicholas Sension, a married man living in Westhersfield, Connecticut, in 1677, revealed that he had been widely known for soliciting sexual contacts with the town’s men and youth for almost forty years but remained widely liked."

Clayton E. Cramer -
7/11/2003

More evidence that the brief submitted by the historians is a little weak on accuracy. I dug out The Book of the General Laws of the Inhabitants of the Jurisdiction of New-Plimouth... (Cambridge: Samuel Green, 1672). Under capital crimes, chapter 2: the statute prohibiting bestiality is completely separate from the statute that prohibited homoseuxal sodomy--and yes, it punished specifically homosexual sodomy. It did not roll all the laws against non-procreative sex into a single statute.

"9. If any Person lyeth with a beast or Bruit Creature, by Carnal Copulation, they shall surely be put to Death, and the Beast shall be slain and buried and not eaten.

"10. If any Man lyeth with Mankinde, as he lyeth with a Woman, both of them have committed Abomination; they both shall surely be put to Death, unless the one part was forced, or be under fourteen years of Age: And all other Sodomitical filthiness, shall be surely punished according to the nature of it."
The same statutes appear in The Book of the General Laws of the Inhabitants of the Jurisdiction of New-Plimouth... (Boston: Samuel Green, 1685).

Clayton E. Cramer -
7/10/2003

"Even in the New England colonies, whose leaders denounced “sodomy” with far greater regularity and severity than did other colonial leaders and where the offense carried severe sanctions, it was rarely prosecuted. The trial of Nicholas Sension, a married man living in Westhersfield, Connecticut, in 1677, revealed that he had been widely known for soliciting sexual contacts with the town’s men and youth for almost forty years but remained widely liked."

Let's see, it's not only a sin in a profoundly Puritan community, but a capital offense--and this guy had been widely known for soliciting homosexual sex for almost forty years? Does anyone besides me find this in desperate need of independent verification?

"Another indication that the sodomy statutes were not the equivalent of a statute against “homosexual conduct” is that with one brief exception they applied exclusively to acts performed by men, whether with women, girls, men, boys, or animals, and not to acts committed by two women."

Nope. This is wrong also. The Connecticut Code of 1650 punished homosexual sex quite separately from bestiality. See Public Records of the Colony of Connecticut 1:77. Two completely separate crimes.

Similarly, Maryland refers both to the crime of sodomy (made capital at Archives of Maryland 1:192) and the crime of buggery (see Archives of Maryland 7:393, where William Boarman requests payment for hanging William Sewick for buggery).

Look, I know that integrity and competence among professional historians is pretty low--but when it is this easy to demonstrate that the claims are at least partly incorrect, it doesn't say much for the quality fo their research.

Clayton E. Cramer -
7/10/2003

Sandra Day O'Connor's concurring opinion used equal protection, not privacy. This means that a case can be made that a law like Idaho's, which prohibits unnatural acts regardless of the sex of the participants, might still survive. Only four justices agreed on the privacy right argument.

In any case, the historical record is clear on this: every American state believed that it had a right to regulate sexual conduct outside of marriage at the time the Constitution was ratified, and sodomy remained a criminal offense until 1961 everywhere in the U.S. The Supreme Court decided that it didn't like sodomy laws, and it wasn't going to let any existing precedents or history get in the way. Think of it as Lochner (1905) for the current day.

I don't know how accurate the rest of this statement is, but let's face it--historians are primarily in the business of political agendas these days, and little falsifcations are becoming the norm.

Josh Greenland -
7/7/2003

I noticed that HNN editorialization in the article above:

"On June 26, 2003 the Supreme Court struck down all laws that prohibit sex between consenting gay adults. Below is the brief filed by historians in the case, Lawrence v. Texas."

As I understood it, the Supreme Court did not accept the case on the ground of equal protect, but did accept it on the basis of privacy, so that they could strike down ALL sodomy laws, not just the sodomy laws of the 4-5 states that prohibited sex between same sex couples, but didn't prohibit sex between adults of the oppposite sex.

Caroline Ward -
7/5/2003

Richard Cornish's execution was quite early in Va's history, c. 1624 if I recall correctly. There was an element of coercion in the case against him (again if I recall it correctly; I did read the record but some years ago). I believe the servant boy claimed to have been forced to participate essentially against his will, and he was let off with a whipping. Cornish was a sea captain who was only briefly in Va.
The op ed piece (which I also read) was not as different from the brief as is implied by the comment, however. The brief argues that same sex sodomy is not singled out for punishment from other practices deemed "sodomitical" (eg bestiality) and that same sex relationships were sometimes acknowledged for settled residents (like Sension). Cornish was not such a man. As I said above he was a transient.

Josh Greenland -
7/4/2003

Didn't the article say the same sex "sodomy" was PUNISHED harshly? I can believe that, but that doesn't contradict the Supreme Court majority's opinion that the laws were rarely used against adult same sex conduct. The modern pattern has been that sodomy laws aren't enforced unless something unusual happens that confronts police with a situation where they accidentally catch people in the act.

Anyway, I thought the editorial used some straw man argumentation. As I recall the recent Supreme Court decision, it stated that specifically SAME SEX sodomy laws didn't exist until quite recently. From all I know, that is true.

HC Carey -
7/3/2003

This strikes me as an excellent piece, and clearly it struck the Court--most of them, anyway--as a good piece of historical argument. I'm not a colonial specialist but I've always been struck by the vaguness of certain terms. What exactly do they mean by "sodomy?" As such this seems elegant, concise, and persuasive

The NYT this morning has an editorial claimng exactly the oppoosite of this brief--it claims that same-sex acts were punished especially harshly in colonial America, especially Jamestown

But it's unconvincing. As I remember my Edmund Morgan, EVERYTHING was punished harshly at Jamestown, from stealing to joining the indians to dissing the local elites. And those early virginians were notoriously vague about terms from which we demand much more precise meanings. Words like "servants" could mean indentured servants from england or Afrcian slaves. And it's not clear WHEN this execution of Cornish took place--was it after the famous moral collapse of Jamestown? Or before? Was the crime Sodomy, or undue famiiarity with a servant? And of course, it was not really possible to commit sodomy with an englishwoman at Jamestown, as there were no women. In the carnal interactions with Indians, I assume from my knowledge, the punishment came from the mistake of familiarity with Indians, not from the carnality.

Does anyone else have a comment on the goodheart editorial? It srikes me as bad history, but I'm not a colonialist